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[2012] ZAECMHC 8
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Minister of Safety and Security v Tyali and Another (2301/2009) [2012] ZAECMHC 8 (14 June 2012)
15
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE, MTHATHA)
CASE NO. 2301/2009
In the matter
between
MINISTER OF
SAFETY AND SECURITY
…..........................................
Applicant
and
MZUKISI
TYALI
…..........................................................................
First
Respondent
KING
SABATA DALINDYEBO
MUNICIPALITY
…......................................................................
Second
Respondent
JUDGMENT
HARTLE J:
In this
interlocutory application, the applicant seeks an order striking out
an answering affidavit deposed to by the first respondent
on 1
September 2010.
The application is
ostensibly made in terms of the provisions of Rule 30A(1) of the
Rules of this court.
The main
application is one pursuant to the provisions of the Prevention of
Illegal Eviction from Unlawful Occupation of Land
Act, No 19 of 1988
(“
the PIE Act
”). An order was granted on 18
February 2010 authorising the applicant to serve the application
pursuant to the provisions
of section 42 of the PIE Act. On the same
date a rule
nisi
was issued calling upon the first respondent
to show cause by 18 March 2010 why she should not be evicted from
premises owned
by the applicant.
On 18 March 2010
the application was removed from the roll.
On 17 June 2010 the
application was again removed.
On 1 July 2010 the
matter served before this court again when it was postponed to 8
July 2010. It appears from the order granted
on the latter date that
the first respondent appeared personally on this occasion. The rule
(which I assume was revived) was
extended to 30 July 2010, and the
first respondent was directed to file her answering affidavit by 23
July 2010.
Albeit not
timeously, she did so on 26 July 2010. Well at least this is the
indication given in the court file which includes
the original
affidavit deposed to by her bearing only the Registrar’s
official stamp of this date on the face of it. It
does not appear
from the filed affidavit, however, that it was served on either the
applicant’s representative or the second
respondent (whose
interest in the matter both parties have incidentally simply
overlooked throughout),
but
I was advised from the bar by Mr
Sishuba
who appeared for
the applicant that the affidavit was indeed served on the latter on
4 August 2011
1
.
The affidavit, when
it was filed, was seemingly not accompanied or preceded by a notice
to oppose which is a peremptory requirement
pursuant to the
provisions of Rule 6(5)(d)(i). Although the first respondent may
have been assisted by an attorney in preparing
the affidavit, the
provisions of the rule were not complied with and nobody went on
record on her behalf. Mr
Sishuba
submitted however,
quite correctly in my view, that the applicant had on 8 July 2010
been advised of the first respondent’s
intention to oppose the
application when she appeared personally; therefore the absence of a
formal notice in this regard was
not an issue in the matter. The
filing of the original answering affidavit by the first respondent
was therefore not an abortive
step for want of either a notice to
oppose or proper “
delivery
”
thereof.
2
On 14 September
2010 a formal notice to oppose was delivered by the first
respondent’s current attorneys of record, followed
two days
later by the filing of yet another answering affidavit deposed to on
1 September 2010. The applicant at first informally
sought to
complain about this by way of a letter addressed to the first
respondent’s attorneys dated 21 September 2010
in which she
was invited to “
regularize
” the fact that he had
already, on 4 August 2010, been served with an answering affidavit.
On 22 September
2010 the first respondent’s attorneys explained that they were
unaware of a prior affidavit, had not found
anything on the court
file when they perused it and were informed by the first respondent
that no service of such affidavit had
taken place. They apologized
and invited the applicant to ignore “
any affidavits not
served by (
their
) office”
.
This precipitated
the applicant’s filing of a Rule 30A(1) notice on 6 October
2010 calling upon the first respondent to
formally remove the “
cause
of the complaint
” - which I set out below - failing which
he would seek an order striking out her second answering affidavit.
The body of
the notice reads as follows :
“
1. The
respondent in reply to the applicant’s application delivered on
applicant’s attorneys of record (her) answering
affidavit on 4
August 2010. The same affidavit was earlier filed with the registrar
of this Honourable Court on 26 July 2010 (first
answering affidavit).
2. The respondent
again on 16 September 2010 delivered to applicant’s attorneys
of record another answering affidavit (which
is different to the one
filed on 26 July 2010) dated 1 September 2010 (second answering
affidavit).
3. The second
answering affidavit was filed in violation of Rule 6 of the Uniform
Rules of Superior Court Practice (the Rules) in
that it was filed
without an application being made first and leave having been granted
for filing of same by this Honourable Court.
4. The respondent’s
non compliance with the Rules as set out above, renders the delivery
of the respondent’s second
affidavit to be in violation of the
Rules of this Honourable Court.”
A further letter
was addressed to the applicant’s attorneys dated 15 October
2010 reminding them of the earlier correspondence
in which the first
respondent’s attorneys explained that the first affidavit,
which the applicant alleged had been served
on him, should be
ignored. The applicant was again requested to “
consider any
affidavits not served by
(their
) office as pro non scripto
and … expunged
”, as well as to reply to the last
affidavit. The hope was further expressed that the applicant would
not pursue the Rule
30A(1) notice.
The applicant’s
attorneys responded, however, that they could not accept the first
respondent’s view that the earlier
affidavit was a nullity. As
far as they were concerned it was a “
legitimate court
document
” and could not simply just be “
wished
away
”. In the result – so they concluded - the
notice in terms of Rule 30A(1) stood.
On 26 October 2010
the first respondent filed a notice withdrawing the earlier
affidavit.
This
notwithstanding, and without filing a fresh notice in terms of rule
30A (1), the applicant persisted with its application
in terms of
Rule 30A(2) which was delivered on 8 December 2010. Evident from the
notice filed in this regard is that the applicant’s
grievance
was not with the first affidavit, or its withdrawal for that matter,
but with the filing of the second affidavit which
had - so it was
contended - been delivered without the leave of this court being
sought and granted. The applicant alleged in
this regard that the
delivery of it “
violates the provisions of Rule 6
”.
No further detail concerning the applicant’s alleged
non-compliance with the particular rule was outlined. The
remedy
which the applicant sought was for the striking out of the first
respondent’s last affidavit.
The first
respondent opposed the application, raising a preliminary argument
that the applicant had failed to comply with the
provisions of Rule
30A(2) in that there was no “
notice
”
to the court for
the application.
3
Further – so
she explained by way of affidavit-
the
second affidavit was delivered without knowledge of the first one,
4
which the applicant
had informally been requested to ignore. She added that after
receipt of the formal notice to remove the cause
of the complaint
(and before the issue of the present application) she had acted
promptly to “
cure
the situation
”
,
not only by again
requesting the applicant to ignore the prior affidavit,
but also thereafter
by formally withdrawing the first answering affidavit. As far as she
was concerned that left only the last
affidavit to be replied to, in
respect of which the applicant was tardy in replying to. She denied
any non-compliance with the
provisions of Rule 6. Indeed it was
argued at the hearing on her behalf that the applicant’s
complaint that she had violated
Rule 6 was not specific to any
sub-rule, leaving her in the dark as to what the real issue was. As
far as she was concerned she
had not filed a “
further
”
affidavit and no
leave from the court was therefore necessary. Such leave might in
the future prove necessary, but such a situation
had not as yet
arisen, most notably because the applicant had not yet filed a
replying affidavit, whether in response to the
now withdrawn first
affidavit, or the second.
5
She submitted
further that since the applicant had at all material times known he
should ignore the first affidavit – which
was properly
withdrawn – there could in the result be no prejudice to him.
When the matter was
argued before me the first respondent added a further string to her
bow of legal arguments by submitting that,
since the application
purported to be one striking out an affidavit – which category
of application is required to be heard
when the matter is before the
court on its merits – it was premature.
The latter argument
is in my view without merit however since it is premised on a
misunderstanding that the applicant’s
present application is
one in terms of the provisions of Rule 6(15), which it clearly is
not. On the contrary, the application
purports peculiarly to be one
within the contemplation of Rule 30A which has its own machinery and
remedy to enforce compliance
with the rules of court generally where
the particular rule offended against does not have its own inbuilt
procedure providing
for an enforcement procedure.
6
In this regard Rule
30A provides as follows:
“
(1) Where a
party fails to comply with these rules or with a request made or
notice given pursuant thereto, any other party may
notify the
defaulting party that he or she intends, after the lapse of 10 days,
to apply for an order that such rule, notice or
request be complied
with or that the claim or defence be struck out.
(2) Failing
compliance within 10 days, application may on notice be made to the
court and the court may make such order thereon
as to it seems meet.”
Before dealing with
the merits of the application, first a brief word about the first
respondent’s original preliminary
objection.
Rule 30A (2)
provides that an application in terms of this sub-rule may “
on
notice
”
be
made to the court. The same concept of “
on
notice
”
is
referred to in rule 6 (11) which deals with interlocutory and other
applications incidental to pending proceedings and is to
be
distinguished from applications which are required to be launched
“
on
notice of motion
”
.
The former category
of applications is required to be “
supported
(only)
by such
affidavits as the case may require,
”
in
other words where there are specific provisions in the rules which
provide for a particular form of application. But interlocutory
applications generally do not require a supporting affidavit,
neither does
“
notice
”
in this rule mean
notice of motion.
7
There was therefore
no need on the part of the applicant to preface its application with
a formal notice of motion or file a supporting
affidavit. Neither
were the provisions of Rule 6 (5) (f) of application. The
Concise
Oxford Dictionary
defines the putting of a person on notice as
meaning to “
warn someone of something about or likely to
occur.
” “
Notice
”, as a noun, is also
described as “
advance notification or warning
”.
Given that the concept of notice is an essential element of due
process, it suffices if a respondent in such an application,
having
already been alerted to his stated non- compliance with a rule (or
with a request made or notice given pursuant thereto),
and the
consequences thereof by his continued failure after a lapse of 10
days, is advised in an acceptable format that the applicant’s
complaint will be elevated to the court for the remedy provided for
to be enforced. It is clear from the face of the Rule 30A
(2) notice
at page 65 of the indexed record that this purports to be the
“
application for the striking out of the
(the first)
respondent’s further affidavit in terms of
(the rule)”
following its precursor which was the Rule 30A (1) notice and that
the remedy sought is for “
the striking out of the
respondent’s further affidavit
.” Therefore, leaving
aside for the moment the merits of the application it in my view
constitutes adequate and appropriate
notice and is in compliance
with the provisions of Rule 30A(2) concerning the manner in which
such applications are required
to be made. I was therefore satisfied
that the matter was properly before me.
Returning now to
the merits of the application, there was some confusion about what
was really troubling the applicant especially
since, after the first
respondent had withdrawn her first affidavit, the Rule 30A(2) notice
continued to allude to the conundrum
posed by a “
further
”
affidavit, which it now no longer was. Mr
Sishuba
argued at
the hearing of the matter that the first respondent was precluded by
the provisions of Rule 28, which provides for
amendments to
pleadings and documents, from filing any affidavit “
whose
intention and consequence would have the effect of amending any
earlier affidavit filed
”. This submission is supported the
provisions of Rule 28 (1), so he argued, which allows for amendments
to pleadings and
documents “
other than a sworn statement
.”
I am not aware of
any provision which precludes a party from withdrawing an affidavit,
or a requirement that such withdrawal should
be accompanied by a
prior application for the leave of the court
per
se,
neither
did counsel refer me to any authority in this regard. I assume
though from his reference to Rule 28 that Mr
Sishuba’s
concern is for a
situation where the new affidavit purports to withdraw admissions
previously made or which involve a “
change
of front
”
within
the meaning referred to in
President
Versekeringsmaatskappy v Moodley
8
Hiemstra J
held in the latter
matter that amendments involving a withdrawal of an admission should
be treated on the same basis as all other
amendments. He noted that
“
the
withdrawal of an admission is usually more difficult to achieve
because (i) it involves a change of front which requires a
full
explanation to convince the court of the bona fides thereof, and
(ii) it is more likely to prejudice the other party, who
had by the
admission been led to believe that he need not prove the relevant
fact and might, for that reason, have omitted to
gather the
necessary evidence
”
.
9
In the original
Rule 30A (1) notice the applicant hinted at the fact that the second
affidavit was different from the first, but
it was not suggested in
it, the follow up Rule 30A (2) notice or at the hearing, that the
last affidavit involved the withdrawing
of any admissions previously
made or required any explanation beyond what the first respondent
had given. The applicant further
appeared to accept, certainly by
the time the matter was argued, that the first affidavit was no
longer in contention. By its
withdrawal it was no longer relevant to
the proceedings.
But to return to
the applicant’s complaint - as it was foreshadowed in the rule
30A (1) notice and continues to be the theme
in the present
application - this has at all times being focused on the second
affidavit and not the first, without specifying
in an intelligible
manner, however, how the first respondent has failed to comply with
any specific rule of court in this regard
so as to affect the
proceedings. Neither has the applicant changed tack since the first
affidavit was withdrawn. If he meant
to complain that the first
respondent should be seeking leave to withdraw admissions previously
made by her (and that until such
leave had been granted the second
affidavit could have no standing), he did not say so nor what
specific rule was not being complied
with in this regard. Or perhaps
he considered that since the first affidavit was now no longer in
contention once it was withdrawn,
the first respondent was required
to seek the court’s condonation for the late filing of the
last affidavit - which was
indeed filed out of time and not in
conformance with this court’s order dated 8 July 2010 –
but this too he did not
say nor warn the first respondent of by way
of a fresh notice in terms of Rule 30A (1) drawing attention to a
new problem laid
bare by the withdrawal of the first answering
affidavit. The applicant could also not have intended to mean,
certainly not once
the first affidavit was withdrawn, that the last
affidavit continued to constitute a “
further
”
affidavit in the sense of being supplementary to the first one,
because the latter had by now been substituted.
There was in my
view therefore an absence of any explicit complaint of a failure to
comply with rule 6 as contended for by the
applicant as providing
the necessary jurisdictional basis for his application in terms of
Rule 30A(2). In the result the application
must fail.
Notwithstanding the
view I take in this matter, I am not inclined to mulct the applicant
with the attorney and client order of
costs prayed for by the first
respondent. The situation in which the applicant found himself was
somewhat unusual and confusing
and a properly specified complaint,
foreshadowed by an appropriate notice drawing attention to the
issues causing concern, may
well have warranted this court’s
intervention. In my view the normal costs result should therefore
pertain.
As an aside, I
queried from Mr
Sishuba
whether the applicant had not
misconceived its remedy and the relevant rule applicable to the
situation. I entertained this notion
since the applicant had alluded
in the informal correspondence to a need for the first respondent to
regularize
the situation. The Rule 30A (1) notice had also
invited the first respond to
remove the cause of his complaint
rather than urging him to comply with the rules in a given manner.
It had further been suggested in argument that the applicant,
by not
filing a replying affidavit, was being careful not to take a further
step in the proceedings
which would compromise its remedy. I
was also struck by the relief sought, being to strike out the
affidavit rather than the
defence itself which is the appropriate
order where the alleged failure to comply affects the whole of the
proceedings. I reflected
that the applicant’s interests might
have been better served by the machinery provided for by Rule 30
which deals with
the situation where an “
irregular step
”
has been taken (or by simply raising his objections in a replying
affidavit), but Mr
Sishuba
was clear that the applicant was
deliberate in his choice of remedy in this regard. Indeed he
persisted that the applicant (despite
not having prayed for this
more austere relief in his notice of application) was entitled to an
order striking out the defence
because the last affidavit was not
properly before me in the absence of the leave of this court to
permit it. For the reasons
indicated above, however, the applicant
has not made out a case for such relief.
Finally I reflected
that I ought in the interests of the proper administration of
justice to give consideration to condoning the
late filing of the
first respondent’s last answering affidavit to promote
finality, but she has not explained adequately
in my view in the
affidavit filed in opposition to the present application how it came
to pass that two affidavits were deposed
to by her in the first
place ( I couldn’t help but notice from the correspondence
exchanged between the parties’
attorneys that there were two
other related matters in which the same situation pertained); has
not accounted for why the last
affidavit is different from the first
(I interpolate to mention that I did not apply my mind to any
meaningful comparison between
the two); has not explained why she
failed to comply with the order of this court dated 8 July 2010; nor
bothered herself with
explaining why, ostensibly out of the blue on
16 September 2010 – a considerable while after the last
affidavit was deposed
to, she ultimately delivered her last
affidavit purporting to be the real McCoy. It struck me further that
to entertain such
relief (without any request from her) would be
undeserving. In any event, the matter requires a proper
consideration of what
might be fair in the circumstances.
I issue the
following order:
The applicant’s
interlocutory application to strike out the answering affidavit of
the first respondent dated 1 September
2010 is dismissed with costs.
______________________
BC HARTLE
JUDGE OF THE HIGH
COURT
Date of hearing : 8
June 2012
Date of judgment :
14 June 2012
Appearance
for the Applicant: Adv M H Sishuba
Instructed
by: THE STATE ATTORNEY
c/o
M B MDA INCORPORATED
46
Wesley Street
MTHATHA
REF.
MBM/AM/C2301
Appearance
for First Respondent: Mr Mtshabe
N
Z MTSHABE INCORPORATED
No.
137 York Road
Meeg
Bank Building
MTHATHA
Appearance
for Second Respondent: Nil
1
Mr
Sishuba produced a copy of the affidavit which bore the date stamp 4
August 2010 and the signature of a representative from
the
applicant’s firm in proof of service on them.
2
A
pleading is delivered, according to the definition in Rule 1, by
filing the original with the registrar and serving a copy on
the
interested parties.
3
In
argument the first respondent further relied on the absence of any
supporting affidavit.
4
Seemingly
the explanation given in the affidavit was that of her attorney,
which was consistent with the correspondence addressed
to the
applicant’s attorneys in this regard. The first respondent
could hardly have disavowed knowledge of the first affidavit.
5
Mr
Sishuba
suggested at the hearing that the applicant had not
done so for fear that this would amount to a “
further step
in the proceedings
” which would compromise his right to
pursue the present remedy.
6
Norman
& Co (Pty) Ltd v Hansella Construction Co (Pty) Ltd
1968 (1)
SA 503
(T);
Houtlands Investments (Pty) Ltd v Traverso
Construction (Pty) Ltd
1976 (2) SA 261
(C).
7
Yorkshire
Insurance Co Ltd v Reuben
1967 (2) SA 263
(E) at 265E – H;
Viljoen v Federated Trust Ltd
1971 (1) SA 750
(O) at 755A –
756C;
Hendricks v Santam Insurance Co Ltd
1973 (1) SA 45
(C)
at 46D – 47C;
Muller v Paulsen
1977 (3) SA 206
(E) at
208E – G;
SA Metropolitan Lewensversekeringsmaatskappy Bpk
v Louw NO
1981 (4) SA 329
(O) at 332G.
8
1964
(4) SA 109
(T).
9
At
pages 110 – 111.